Allahabad High Court
Pyare Lal vs State Of U.P. Thru Secy. And 2 Others on 19 February, 2020
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 50 Case :- WRIT - C No. - 53130 of 2013 Petitioner :- Pyare Lal Respondent :- State Of U.P. Thru Secy. And 2 Others Counsel for Petitioner :- A.K. Malviya Counsel for Respondent :- C.S.C. Hon'ble Salil Kumar Rai,J.
Heard the counsel for the petitioner and the Standing Counsel representing the respondents.
The present writ petition has been filed against the order dated 23.11.2011 passed by the Sub-Divisional Magistrate, Jamaniya, District Ghazipur cancelling the licence of the fair price shop allotted to the petitioner as well as against the order dated 23.2.2013 passed by the Deputy Commissioner (Food), Varanasi Region, Varanasi dismissing the appeal filed by the petitioner.
A reading of the order dated 23.2.2013 passed by the appellate authority shows that the appellate authority has rejected the appeal filed by the petitioner on the ground that a criminal case registered under Section 3/7 of the Essential Commodities Act was still pending against the petitioner. Apart from the aforesaid, no other reason has been given by the appellate authority for rejecting the appeal filed by the petitioner. A reading of the appellate order dated 23.2.2013 also shows that in its aforesaid order, the Deputy Commissioner has merely recited in verbatim the findings recorded by the Sub-Divisional Magistrate and has not met the grounds raised by the petitioner in his appeal. Evidently, the order dated 23.2.2013 passed by the appellate authority is a non-speaking order. It was held in Jagdish Narain Mishra Vs. State of U.P. (Civil Misc. Writ Petition No. 28051 of 2008), the fair price shop licence of the allottee cannot be cancelled merely on the ground that a case under Section 3/7 of the Essential Commodities Act has been registered against the allottee.
At this stage, it would be relevant to reproduce the observations of the Division Bench judgment of this Court in Writ - C No. 1766 of 2011 (Smt. Raj Kumari Singh Vs. State of U.P. & Others):-
"Ordinarily we would not have entertained this writ petition as an appeal is available in a case of cancellation of licence. However, we find over here that the Judgment of this Court dated 30.10.2009 in Jagdish Narain Mishra vs. State of U.P. (Civil Misc. Writ Petition No. 28051 of 2008) has not been followed wherein the learned Judge observed as under:-
"Despite advancing lengthy arguments, learned standing counsel has failed to bring to the notice of the Court any provision either under the Essential Commodities Distribution Order, 2004 or under any other Government Order issued either under the 2004 order or 1990 order empowering the Licensing Authority to cancel a fair price shop agreement merely on account of a dealer being involved in a criminal case. Hence the cancellation of the petitioner's agreement on the ground of his involvement in aforesaid criminal case under the Essential Commodities Act is also unsustainable."
Nothing has been brought to our attention that the said judgment has been overruled. Even otherwise, we are of the opinion that the said conclusion cannot be faulted for the reason that mere filing of a F.I.R. cannot result in holding a fair price shop owner guilty of the offences charged. If there be a conviction, then it is possible to proceed, based on the conviction and not otherwise. In case if the F.I.R. is lodged, it is still open to the respondents to proceed by leading independent evidence and statements of the persons recorded."
For the aforesaid reason, the order dated 23.2.2013 passed by the Deputy Commissioner (Food), Varanasi Region, Varanasi is contrary to law and is, hereby, quashed.
The matter is remanded back to the Deputy Commissioner (Food), Varanasi Region, Varanasi, i.e., respondent no. 2 to decide the appeal filed by the petitioner against the order dated 23.11.2011, i.e. Appeal No. 34 of 2011 within a period of six months from the date a certified copy of this order is produced before him.
With the aforesaid directions, the writ petition is allowed.
Order Date :- 19.2.2020 Satyam